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Critics Say Federal Prosecutors Are Pushing The Envelope With Protest Charges

LULU GARCIA-NAVARRO, HOST:

The Justice Department says federal prosecutors around the country have now charged more than 300 people for alleged crimes during social justice protests. Given the president's campaign rhetoric about these demonstrations in cities led by Democrats, there's alarm about whether these federal prosecutions are politically motivated. NPR's Martin Kaste has more.

MARTIN KASTE, BYLINE: In some of these cases, you can see why the feds got involved - say, damage to a federal courthouse or assault on a federal officer. But U.S. attorneys have also been bringing charges in cases that you'd expect to be handled by local prosecutors - say, protesters accused of inciting a riot.

MICHAEL FILIPOVIC: They're really pushing the envelope on federal jurisdiction because they really want to assert a general police power over local matters.

KASTE: Michael Filipovic is the federal public defender in Seattle. He thinks federal prosecutors are following through on the public rhetoric of Attorney General William Barr and President Trump, who've railed against Democratic cities for being too permissive of protests, especially the ones that get violent or destructive.

FILIPOVIC: This is not everyday prosecutorial discretion on the cases we're seeing. It's clearly related to wanting to send a message.

KASTE: And if you talk to the U.S. attorney in Seattle, Brian Moran, he's happy to confirm that, yes, he is sending a message - this message.

BRIAN MORAN: It's perfectly acceptable to come out and protest. Leave the Molotov cocktail, the homemade shotgun at home and don't destroy a business.

KASTE: But Moran says no one should think that the Justice Department is pulling his strings.

MORAN: Largely, I've been left - I think, appropriately - to my own devices to determine what cases should and should not be charged federally.

KASTE: Around the country, local prosecutors have reacted warily to the federal involvement. In Seattle, the county prosecuting attorney Dan Satterberg says he trusts the U.S. attorney's office to do the right thing, but he rejects the messaging from the Justice Department, especially the memo it sent out condemning the, quote, "anarchy" in New York, Portland and Seattle.

DAN SATTERBERG: I find this political taunt to be sad and to be unworthy of the Department of Justice. You know, I've worked with local U.S. attorney's office now for more than 30 years, have a lot of respect for the people who work there. They're serious career prosecutors, and I doubt that many of them want to have their work seen in this political light.

KASTE: Rebecca Roiphe is a former prosecutor, now professor at New York Law School, and she focuses on prosecutorial ethics. She says if the Justice Department wants to prioritize crimes by protesters, that's its prerogative. But she's dismayed that the federal sentencing guidelines mean that people could face 20 years for, say, throwing a Molotov cocktail into an empty police car.

REBECCA ROIPHE: That seems extreme to me. But it's extreme not because Attorney General Barr is at the helm. It's extreme because we, on our watch, have allowed these things to become insanely over-criminalized.

KASTE: Generally speaking, a federal prosecution is seen as bringing the hammer down, partly because of the sentences and partly because the feds have more resources. Seattle's U.S. Attorney Brian Moran says federal arson investigators have the skill set to bring cases against people who use incendiary devices, and he says that has had a deterrent effect.

MORAN: I've heard it anecdotally from several Seattle police officials that the minute we charged our first two arson cases, the level of burning and people with Molotov cocktails and similar devices just dropped down significantly.

LAUREN REGAN: I would say for most activists, being in federal court is more stressful.

KASTE: That's Lauren Regan, the executive director of the Civil Liberties Defense Center in Oregon. She has years of experience defending activists, going back to the 2000s when the feds cracked down on property destruction by environmental activists in the Northwest. Now she's helping to defend Black Lives Matter protesters in Portland, the city with the most federal charges against protesters - more than 80 cases.

REGAN: And I do not know how they will actually implement justice in the face of a pandemic.

KASTE: The courts are severely backlogged, and she thinks that simple reality is going to play a role in how all of this ends up.

REGAN: If I was a betting gal, I would say that come December, January, when we're back in another massive spike of coronavirus, you're going to see a bunch of these cases get tossed.

KASTE: But right now, as we enter the final stretch of the presidential campaign, the Justice Department says it's still adding to the public list of protesters facing federal charges.

Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.

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